This was an action in partition. The plaintiff alleged that he is entitled to an interest in property under the will of Ralph Burrows, which was dated the 29th of January, 1879, and which was duly admitted to probate, and the question as to whether or not the plaintiff had an interest in this property depends upon the construction to be given to the 1st clause of this will, It is conceded that the testator died on the 10th day of August, 1882, seized in fee simple of the property in question; that the testator’s wife died before him and that he left no children, his heirs at law being nephews and nieces of the testator residing in England. It further appeared that prior to the death of the testator’s wife, one Susan Bray lived in the family apparently as a domestic. After the death of the testator’s wife, Susan Bray continued to live in his house until his death. After his death she continued to occupy the house until the time of her death. There is evidence that the relations between the testator and his brothers and sisters and their descendants were friendly, and continued so to the time of his death; that, he visited them in England and some of them visited him in Hew York. *458By the 1st clause of this will the testator gave and bequeathed to Susan Bray all of his real estate, with the buildings and appurtenances ; his burial plot in Bensonia Cemetery, situated in Morrisania, together with his household furniture and wearing apparel and the sum of $1,000 in cash, and the interest during the term of her life upon moneys invested in two mortgages, “ to have and to hold in her own light and to her own use so long as she may live single and unmarried, said moneys in said two mortgages to be kept on investment during the lifetime of said Susan Bray, she to .receive all the interest and income thereof — and in case she shall marry again, then in that case all the property herein bequeathed to her shall revert to my Estate and be distributed among my heirs at law, share and share alike.” There is evidence that Bensonia Cemetery had been discontinued as a place of burial 'some time before the date of this will, and that bodies which had been interred there were disinterred. This took place about the year 1869, a large part of that cemetery having been then taken as a public avenue. The evident intent of the testator was to provide for Susan Bray after his death. He gave her the house in which he had lived with her for many years. He gave her the interest on certain mortgages tliat he owned, and he gave her this lot in the cemetery which had been discontinued as a cemetery and was only of value as an interest in real property. Did he intend that this devise of his real property should be in fee or a life estate ? He clearly intended that if she remarried she should lose all interest in his property, and that it should then vest in the heirs at law. He had in mind the fact that he-had relatives living in England to whom, in the absence of some other testamentary disposition of his property, this property could go. It is difficult to see why he should be so careful that she should have but a life estate in the mortgages mentioned if he intended to give the fee of the house and lot in which they had lived. In this will there are no wrnrds of inheritance and no intention to give her a fee, and it is conceded that if Susan Bray had remarried whatever title she had would have been divested. He gave her all this real property “ to hold in her own right and to her own use so long as she may live single and unmarried.” Giving to this language its ordinary meaning, it seems to me that this clause must relate to the devise and bequests. That this limitation did not *459relate to the two mortgages is apparent from the following specific provision, that “ said moneys in said two mortgages to be kept on investment daring the lifetime of said Susan Bray, she to receive all the interest and income thereof.” The will seems to express an intention of limiting the gift of this real property to her use during her life, or so long as she remained without a husband who presumably would be able to support her; and'the subsequent clause providing that upon her remarriage her interest in the property should cease and should go to his heirs at law is inconsistent with the intention that she should have a fee in the property if she died without having remarried. There is no indication anywhere in this will that he thought of giving to Susan Bray any interest in any of the property that he left her which should extend beyond her life, and it seems to me that the whole clause speaks of an intent to provide for this old servant during her life, or until she had secured a husband who would care for her, and that upon her death or remarriage the property should then go to his relatives in England.
I think, therefore, the plaintiff became entitled under the will of the testator to an undivided interest in this real property upon the death of Susan Bray, and that the judgment dismissing the complaint cannot stand.
As all the facts are found by the court which would entitle the plaintiff to an interlocutory judgment of partition and sale, if the construction to be given to this clause of the will, as before indicated, is correct, the judgment appealed from should be reversed and an interlocutory judgment for partition and sale in the usual form should be entered, with costs to the appellant to be paid out of the proceeds of the property.
Laughlin, J., concurred.
Judgment affirmed, with costs.